{"title":"Correction to the Article: The UN Security Council Faces Organized Crime: Fact-finding, Regulation and Enforcement Strategies","authors":"","doi":"10.1093/jicj/mqac054","DOIUrl":"https://doi.org/10.1093/jicj/mqac054","url":null,"abstract":"","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":"7 2","pages":""},"PeriodicalIF":0.9,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41243566","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Followers of the International Criminal Court (ICC) interested in theories of liability were looking forward to the Appeals Chamber judgment in the Ntaganda case, in which Bosco Ntaganda was convicted of war crimes and crimes against humanity in the Democratic Republic of the Congo (DRC). The conviction was based on the theory of indirect co-perpetration through an Organized Structure of Power (OSP). This theory resulted from a specific interpretation of the ICC Statute, based on German legal scholarship. The theory has been criticized for its breadth and lack of legal basis. It has also been embraced as the theory of liability that best captures the liability of those who mastermind crimes. When the judgment was delivered on 30 March 2021, the appellate bench was divided, which arguably leaves the theory still contested. This symposium discusses indirect co-perpetration from perspectives hitherto not discussed. Two articles look at how the German theory of Tatherschaft that lies at the basis of indirect co-perpetration, has been absorbed in some domestic legal systems (Japan and Columbia). One article discusses the multi-layered concept of control that is at the heart of the theory. In another piece, adopting a law and sociology approach, authors explore the creative processes that produced indirect co-perpetration. Lastly, one author discusses the viability of an alternative to indirect co-perpetration: instigation.
{"title":"Foreword","authors":"Elies van Sliedregt, B. Weisser","doi":"10.1093/jicj/mqac033","DOIUrl":"https://doi.org/10.1093/jicj/mqac033","url":null,"abstract":"\u0000 Followers of the International Criminal Court (ICC) interested in theories of liability were looking forward to the Appeals Chamber judgment in the Ntaganda case, in which Bosco Ntaganda was convicted of war crimes and crimes against humanity in the Democratic Republic of the Congo (DRC). The conviction was based on the theory of indirect co-perpetration through an Organized Structure of Power (OSP). This theory resulted from a specific interpretation of the ICC Statute, based on German legal scholarship. The theory has been criticized for its breadth and lack of legal basis. It has also been embraced as the theory of liability that best captures the liability of those who mastermind crimes. When the judgment was delivered on 30 March 2021, the appellate bench was divided, which arguably leaves the theory still contested. This symposium discusses indirect co-perpetration from perspectives hitherto not discussed. Two articles look at how the German theory of Tatherschaft that lies at the basis of indirect co-perpetration, has been absorbed in some domestic legal systems (Japan and Columbia). One article discusses the multi-layered concept of control that is at the heart of the theory. In another piece, adopting a law and sociology approach, authors explore the creative processes that produced indirect co-perpetration. Lastly, one author discusses the viability of an alternative to indirect co-perpetration: instigation.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2022-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43762590","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article deals with the question of the attribution of criminal responsibility to leaders of large criminal organizations for crimes which were committed by their subordinates in compliance with their orders. It presents a critical assessment of Roxin’s theory of indirect perpetration through an organized apparatus of power, as well as of the International Criminal Court’s theory of indirect co-perpetration through an organized structure of power. Both theories have serious shortcomings and, in addition, fail to conceptually capture the greater responsibility of the leaders of the organization vis-à-vis the executors. Thus, this article presents an outline of a typological system of the influence over the crime, which constitutes an alternative system of criminal participation and offers a better solution to the problem of criminal responsibility of the members of an organized apparatus of power.
{"title":"Reflections on Indirect (Co-)Perpetration through an Organization","authors":"Hernán Darío Orozco López, Natalia Silva Santaularia","doi":"10.1093/jicj/mqac034","DOIUrl":"https://doi.org/10.1093/jicj/mqac034","url":null,"abstract":"\u0000 This article deals with the question of the attribution of criminal responsibility to leaders of large criminal organizations for crimes which were committed by their subordinates in compliance with their orders. It presents a critical assessment of Roxin’s theory of indirect perpetration through an organized apparatus of power, as well as of the International Criminal Court’s theory of indirect co-perpetration through an organized structure of power. Both theories have serious shortcomings and, in addition, fail to conceptually capture the greater responsibility of the leaders of the organization vis-à-vis the executors. Thus, this article presents an outline of a typological system of the influence over the crime, which constitutes an alternative system of criminal participation and offers a better solution to the problem of criminal responsibility of the members of an organized apparatus of power.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2022-08-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45818879","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article investigates the International Criminal Court (ICC) as a law laboratory. Inspired by perspectives from the sociology of law, the article analyses how professional agents battled for control over the general direction and specific legal terminology of the Court, especially in its early life. Working also to distance the Court from what was perceived as excessive judicial creativity of the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda, these agents created the conditions for a distinct laboratory of law in which new legal concepts and doctrines could be created. The article analyses in particular one new doctrine, the control theory based on Article 25(3) of the ICC Statute, as emblematic of battles to define the direction of the ICC as a law laboratory.
{"title":"The International Criminal Court as a Law Laboratory","authors":"M. Christensen, Nabil M. Orina","doi":"10.1093/jicj/mqac035","DOIUrl":"https://doi.org/10.1093/jicj/mqac035","url":null,"abstract":"\u0000 This article investigates the International Criminal Court (ICC) as a law laboratory. Inspired by perspectives from the sociology of law, the article analyses how professional agents battled for control over the general direction and specific legal terminology of the Court, especially in its early life. Working also to distance the Court from what was perceived as excessive judicial creativity of the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda, these agents created the conditions for a distinct laboratory of law in which new legal concepts and doctrines could be created. The article analyses in particular one new doctrine, the control theory based on Article 25(3) of the ICC Statute, as emblematic of battles to define the direction of the ICC as a law laboratory.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2022-08-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44684691","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Ginevra Le Moli, Human Dignity in International Law","authors":"W. Timmermann","doi":"10.1093/jicj/mqac032","DOIUrl":"https://doi.org/10.1093/jicj/mqac032","url":null,"abstract":"","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2022-08-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48215419","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Rosario Salvatore Aitala, Diritto internazionale penale","authors":"Flavia Patanè","doi":"10.1093/jicj/mqac031","DOIUrl":"https://doi.org/10.1093/jicj/mqac031","url":null,"abstract":"","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2022-07-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48902679","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The judgment in Ntaganda constitutes a landmark decision in which the Appeals Chamber of the International Criminal Court (ICC) for the first time accepted an accused’s criminal liability based on indirect co-perpetration. And yet, the concept of indirect co-perpetration continues to remain heavily contested. In this article, I use the Ntaganda Trial and Appeals Chamber judgments as a starting point for disentangling the control theory. I argue that the concept of control is a multidimensional theory. It is based on both empirical and normative considerations and constitutes a mixture of individual and collective liability. The meaning of control is not uniform: it varies along several dimensions that are applied depending on the facts of the case. The ICC’s flexible application of the notion of control does not fit well with the uniform framework it has drawn up in establishing the liability of indirect co-perpetrators. There is a gap between the law in the books and the law in action, which triggers questions about the possibilities and limitations of judicial creativity at the ICC. To enable better public accountability, transparency and legal certainty, I propose a model of factor-based reasoning at the ICC that can streamline and better justify what currently is a very fluid liability theory generating problematic case law.
{"title":"The Control Theory as Multidimensional Concept","authors":"M. Cupido","doi":"10.1093/jicj/mqac028","DOIUrl":"https://doi.org/10.1093/jicj/mqac028","url":null,"abstract":"\u0000 The judgment in Ntaganda constitutes a landmark decision in which the Appeals Chamber of the International Criminal Court (ICC) for the first time accepted an accused’s criminal liability based on indirect co-perpetration. And yet, the concept of indirect co-perpetration continues to remain heavily contested. In this article, I use the Ntaganda Trial and Appeals Chamber judgments as a starting point for disentangling the control theory. I argue that the concept of control is a multidimensional theory. It is based on both empirical and normative considerations and constitutes a mixture of individual and collective liability. The meaning of control is not uniform: it varies along several dimensions that are applied depending on the facts of the case. The ICC’s flexible application of the notion of control does not fit well with the uniform framework it has drawn up in establishing the liability of indirect co-perpetrators. There is a gap between the law in the books and the law in action, which triggers questions about the possibilities and limitations of judicial creativity at the ICC. To enable better public accountability, transparency and legal certainty, I propose a model of factor-based reasoning at the ICC that can streamline and better justify what currently is a very fluid liability theory generating problematic case law.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2022-07-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44465683","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article explores the issue of leadership criminality with a view to construing it as ordering liability under Article 25(3)(b) of the ICC Statute. It outlines the requirements of ordering liability as they can be deduced from the practice of international criminal tribunals and the International Criminal Court. In a case study, it applies these criteria to the conduct of Bosco Ntaganda to ascertain whether he could have been convicted for ordering crimes. Based on the case study, the article discusses whether ordering, as a form of criminal responsibility, should be preferred to the theory of indirect (co-)perpetration.
{"title":"Ordering as an Alternative to Indirect Co-Perpetration","authors":"J. Block","doi":"10.1093/jicj/mqac030","DOIUrl":"https://doi.org/10.1093/jicj/mqac030","url":null,"abstract":"\u0000 This article explores the issue of leadership criminality with a view to construing it as ordering liability under Article 25(3)(b) of the ICC Statute. It outlines the requirements of ordering liability as they can be deduced from the practice of international criminal tribunals and the International Criminal Court. In a case study, it applies these criteria to the conduct of Bosco Ntaganda to ascertain whether he could have been convicted for ordering crimes. Based on the case study, the article discusses whether ordering, as a form of criminal responsibility, should be preferred to the theory of indirect (co-)perpetration.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2022-07-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44346602","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the case law of the International Criminal Court (ICC), the notion of indirect co-perpetration, based on the control theory, has been applied extensively. The Ntaganda appellate ruling has shown that this concept of attributing liability to persons in a position of leadership remains contested and thus requires further clarification and refinement. To this end, this article provides a comparative view on the related jurisprudence of the ICC from a Japanese perspective, which has not been reflected in the international debate on modes of liability so far. Even though the control theory has only been adopted partially in domestic law in Japan, many Japanese scholars have conveyed generally affirmative assessments of this ICC jurisprudence. In addition, the approaches that Japanese criminal law has to offer on attributing responsibility to remote masterminds behind crimes are also presented in this article. The predominating notion in Japanese case law, ‘collusive co-perpetration’ — for the most part unnoticed (or underexplored) outside of Japan — exemplifies that it is practically viable (and theoretically construable) to incorporate combined vertical and horizontal attribution mechanisms into a normative model of co-perpetration — without necessarily resorting to the notion of control over an organization.
{"title":"Indirect Co-Perpetration and the Control Theory","authors":"Philipp Osten","doi":"10.1093/jicj/mqac029","DOIUrl":"https://doi.org/10.1093/jicj/mqac029","url":null,"abstract":"\u0000 In the case law of the International Criminal Court (ICC), the notion of indirect co-perpetration, based on the control theory, has been applied extensively. The Ntaganda appellate ruling has shown that this concept of attributing liability to persons in a position of leadership remains contested and thus requires further clarification and refinement. To this end, this article provides a comparative view on the related jurisprudence of the ICC from a Japanese perspective, which has not been reflected in the international debate on modes of liability so far. Even though the control theory has only been adopted partially in domestic law in Japan, many Japanese scholars have conveyed generally affirmative assessments of this ICC jurisprudence. In addition, the approaches that Japanese criminal law has to offer on attributing responsibility to remote masterminds behind crimes are also presented in this article. The predominating notion in Japanese case law, ‘collusive co-perpetration’ — for the most part unnoticed (or underexplored) outside of Japan — exemplifies that it is practically viable (and theoretically construable) to incorporate combined vertical and horizontal attribution mechanisms into a normative model of co-perpetration — without necessarily resorting to the notion of control over an organization.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2022-06-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48685419","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Transitional justice practices in the Arab World have unfolded in ways that both reinforce the value of the critical turn in transitional justice while also underscoring its limitations. Used as both a tool of repression and of resistance, transitional justice practices in the Arab World mark a significant development in the field by expanding its dynamic processes across time and space. Ongoing violence and the resurgence of authoritarian rule have necessitated a transitional justice process that aims to help deliver on the revolutionary objectives of the Arab uprisings themselves: to uproot decades of structural oppression and authoritarian rule. This article begins with a brief review of the critical turn in transitional justice and how it presents questions, limitations, and opportunities with regard to key transitional justice practices in the Arab World. Next, it will examine how such practices have made the state and its institutions as object of transitional justice as opposed to its enforcer. The article will then address the potentials of universal jurisdiction as a transitional justice strategy that has just as much to do with a broader political project, such as weakening an authoritarian regime, as it does with the narrower goal of putting regime officials on trial. Finally, I argue that transitional justice in the Arab World is a tool of resistance to colonial and neo-colonial powers, making it an important engine of Third World Approaches to International Law praxis.
{"title":"Transitional Justice as Repression and Resistance","authors":"Noha Aboueldahab","doi":"10.1093/jicj/mqac027","DOIUrl":"https://doi.org/10.1093/jicj/mqac027","url":null,"abstract":"\u0000 Transitional justice practices in the Arab World have unfolded in ways that both reinforce the value of the critical turn in transitional justice while also underscoring its limitations. Used as both a tool of repression and of resistance, transitional justice practices in the Arab World mark a significant development in the field by expanding its dynamic processes across time and space. Ongoing violence and the resurgence of authoritarian rule have necessitated a transitional justice process that aims to help deliver on the revolutionary objectives of the Arab uprisings themselves: to uproot decades of structural oppression and authoritarian rule. This article begins with a brief review of the critical turn in transitional justice and how it presents questions, limitations, and opportunities with regard to key transitional justice practices in the Arab World. Next, it will examine how such practices have made the state and its institutions as object of transitional justice as opposed to its enforcer. The article will then address the potentials of universal jurisdiction as a transitional justice strategy that has just as much to do with a broader political project, such as weakening an authoritarian regime, as it does with the narrower goal of putting regime officials on trial. Finally, I argue that transitional justice in the Arab World is a tool of resistance to colonial and neo-colonial powers, making it an important engine of Third World Approaches to International Law praxis.","PeriodicalId":46732,"journal":{"name":"Journal of International Criminal Justice","volume":" ","pages":""},"PeriodicalIF":0.9,"publicationDate":"2022-06-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44211611","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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